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Bold challenge to a law on religion

By Lyle Denniston

January 28, 2013 SCOTUS Blog - Arguing that Congress has gone too far to push aside the Supreme Court’s constitutional role in religion cases, a loose coalition of child welfare organizations, survivors of clergy child sexual abuse, and non-believers has urged the Justices to strike down the Religious Freedom Restoration Act when it rules on a new dispute over the federal health care law.

The amicus brief, written by a prominent academic authority on religion and the law, Cardozo Law School’s Marci A. Hamilton, seeks to add a bold new dimension to the Court’s review of the Affordable Care Act’s “contraception mandate.”

“RFRA,” the document contended, “is Congress’s overt attempt to take . . . over this Court’s role in interpreting the Constitution. . . . [T]his novel federal statute, which is one of the most aggressive attacks on this Court’s role in constitutional interpretation in history, has fomented culture wars in the courts like the one ignited” in the pending cases by for-profit businesses seeking a RFRA-based exemption from the mandate to provide health insurance for pregnancy-related services to workers.

“The intense passions about religious freedom and women’s reproductive health in this case have obscured the issue that should be decided before this Court reaches the merits: RFRA is unconstitutional,” the brief argued. The filing represents the views of seven organizations, telling the Court that they “are united in their concern that RFRA endangers the vulnerable — who otherwise would be protected by the neutral, generally applicable laws of this country.”

The law was passed in 1993, in reaction to the Supreme Court’s decision three years earlier inEmployment Division v. Smith, allowing the enforcement of general laws as they applied to religious individuals or groups, even when the result is to impose a burden on the practice of their faith. Under RFRA, if a religious person or organization shows that a law puts a burden on the exercise of their religious beliefs, the government must then show that it is justified by a “compelling interest” — a tough test to meet.

On March 25, the Court will hold oral argument on the combined cases of Sebelius v. Hobby Lobby Stores (13-354) and Conestoga Wood Specialties Corp. v. Sebelius (13-356). Both involve profit-making businesses whose owners object, for religious reasons, to some of the coverage requirements of the ACA’s pregnancy-related services mandate. Whether businesses can actually “exercise” religion, under RFRA, is the central issue in this controversy.

The constitutionality of RFRA has not been raised as an issue by the two sides in the dispute, but if the Court were to take up that issue, it would be up for decision before the Court moved on to resolve how far the law goes to protect private businesses with religiously devout owners.

The Court has already struck down RFRA as it applied to actions by state governments. That decision, the 1997 caseCity of Boerne v. Flores, was based not on separation-of-powers issues — the core challenge of this new amicus brief — but upon limits the Court found to Congress’s authority to pass laws regulating the states under the Fourteenth Amendment. RFRA’s constitutionality as applied to federal laws was not at issue there.

The new brief urged the Court to move on to the question of RFRA’s validity as it applies to federal laws, like the ACA. Its argument against the law was based on two claims: first, that the law violates separation-of-powers principles because Congress undertook to rewrite the constitutional rule the Court had laid down in the Smith case; and, second, that RFRA provides “a political and fiscal windfall” to religious organizations that violates the Constitution’s Establishment Clause, mandating separation between government and religion.

In seeking to focus the Court’s attention on the intrusion these organizations perceived Congress to have made into the institutional role of the Court as the final arbiter of what the Constitution means, the new brief said that “the hearings before Congress [preceding RFRA's enactment] were almost exclusively a litany of criticism against this Court and the Smith decision, accompanied by demands that Congress reverse this Court’s reading of the First Amendment.”

The law, the filing added, “handed religious claimants” the constitutional standard sought in that case by a member of an Indian tribe, but that the Court had explicitly rejected. “The result,” the organizations argued, “was that religious entities obtained extreme rights to trump constitutional, neutral, generally applicable laws, in defiance of the Court’s opinion.”

The groups represented on the brief are the Freedom from Religion Foundation (an organization of atheists and agnostics), BishopAccountabiity.org, Children’s Healthcare is a Legal Duty, Child Protection Project, Foundation to Abolish Child Sex Abuse, Survivors for Justice, and Survivors Network of Those Abused by Priests.

The government and the business organizations involved in the combined cases will have the option, if they choose, to answer the arguments of the new brief when they file reply briefs prior to the March 25 hearing.